59 F.3d 171
Sixth Circuit Rule 24(c) states that citation of unpublished
dispositions is disfavored except for establishing res judicata,
estoppel, or the law of the case and requires service of copies of
cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
Walter Clinton VALENTINE, Jr., Defendant-Appellant.
United States Court of Appeals, Sixth Circuit.
June 30, 1995.
Before: MARTIN and RYAN, Circuit Judges; and GILMORE, Senior District Judge.*
RYAN, Circuit Judge.
defendant, Walter Valentine, appeals from his convictions and sentence
entered after a jury found him guilty of two violations of 18 U.S.C.
Sec. 472: (1) possessing and concealing counterfeited currency with the
intent to defraud; and (2) passing counterfeited currency with the
intent to defraud. On appeal, the defendant raises three issues: (1)
whether the district court erred by partially denying the defendant's
request for specific government records under Brady v. Maryland; (2)
whether sufficient evidence supported the guilty verdicts; and (3)
whether the district court clearly erred in determining the amount of
the "face value of the counterfeit items" for purposes of setting the
offense level. We affirm the convictions and sentence.
December 1992 to August 1993, Walter Valentine served as an informant
for the Federal Bureau of Investigation (FBI), providing information
regarding a prostitution, drug distribution, and counterfeiting ring.
Valentine worked with FBI Agent Wayne Baker. During the 1980s,
Valentine was an FBI informant in investigations unrelated to the
1992-93 counterfeiters. While working on the 1992-93 counterfeiting
investigation, Valentine provided information regarding another,
unrelated investigation. The events relevant to this case arose from
the 1992-93 counterfeiting investigation.
Prior to August
1993, D & B Auto Sales, an automobile dealership in Knoxville,
Tennessee, sold Valentine a $1300 Ford LTD; Valentine paid a $600 down
payment, leaving a $700 balance. On August 17. 1993, the defendant left
an envelope which contained $700 in counterfeit twenty dollar bills and
a receipt under D & B's door. On that evening, two D & B
employees, Brad Keller and Anthony Ellison, found the envelope and
inspected the currency. Ellison noticed that some of the serial numbers
matched those on other bills, prompting him to phone D & B's owner,
Doug Boles. Keller, Ellison, and Boles drove to the defendant's house
and confronted Valentine. According to the D & B employees,
Valentine asserted that he had placed hundred dollar bills in the
envelope and accused Keller and Ellison of switching the money. After
further argument, Boles told Ellison to call the police. Valentine then
drove away before the police arrived. At trial, Valentine denied ever
telling Boles that he had paid in hundred dollar bills. According to
the defendant, Valentine suggested that Boles call the police.
Valentine conceded at trial that he left the counterfeit cash, he
claimed he was forced to do so. According to the defendant, a
counterfeiter, Cary Scoggins, gave him the bogus money in McAllen,
Texas. Valentine testified that another alleged counterfeiter and drug
dealer, Jeff "Jay" Perry, ordered the defendant to use $700 of the
counterfeit cash to pay the remaining balance on the Ford LTD in order
to obtain the car's title. Presumably, Perry knew a Mexican drug dealer
who wanted the car. Valentine testified that Perry followed the
defendant to D & B on August 17 and watched the defendant leave the
envelope. Valentine asserted that he delayed arriving there until after
business hours, hoping to call Baker that evening and ask the agent to
pick up the counterfeit bills. After leaving the money at D & B,
Valentine drove around for an hour to ensure no one was following him.
At trial, Valentine admitted that he had not been threatened on August
17 in Knoxville; the alleged threat was made in McAllen. The defendant
also admitted that he already owned title to the Ford LTD by August 18,
Cary Scoggins testified that he never directed
Valentine to use the money to pay for the Ford LTD, and that Valentine
bragged about paying for the car with counterfeit money. Scoggins
admitted that he gave Valentine counterfeit cash several times. First,
in June or July 1993, Scoggins gave Valentine $1000 as a "sample," then
an additional $9000. Later, around early August 1993, Scoggins traveled
from Chattanooga to McAllen in order to do "business" in Mexico.
Scoggins brought $280,000 in counterfeit cash with him to McAllen,
hoping to spend it in Mexico. When Scoggins's "associates" were
arrested for counterfeiting, he decided to destroy the counterfeit
bills. However, Valentine asked for some of the cash, and Scoggins
obliged by giving Valentine between $50,000 and $100,000. Thus,
according to Scoggins, by early August 1993, he had given Valentine
$60,000 to $110,000 in counterfeit cash.
Around August 13,
1993, Valentine turned over $1740 in counterfeit currency to Agent
Baker; $200 worth of the bills were shredded. After the August 17
confrontation with the D & B employees, Valentine drove two hours
to Chattanooga. Upon reaching Chattanooga, the defendant called Baker,
who works in Knoxville, and reported the encounter. On August 18,
Valentine gave Baker another $10,200 in counterfeit money.
March 1, 1994, a federal grand jury returned a two-count indictment
against the defendant. Count 1 alleged that, from the end of June 1993
to August 18, 1993, Valentine possessed and concealed counterfeit notes
with the intent to defraud. Count 2 alleged that, on August 17, 1993,
Valentine passed counterfeit notes at D & B with the intent to
defraud. On April 28, 1994, Valentine notified the government that he
intended to rely upon the defense of actual or believed exercise of
public authority on behalf of the FBI. The defendant also moved for the
production of "specific" Brady materials; paragraphs 4-7 of the motion
requested: (4) records of all information provided by Valentine to the
FBI; (5) records showing the dangerousness of all persons about whom
Valentine provided information to the FBI; (6) results of a review of
FBI personnel files of Wayne Baker, George Lambert, William Hendon, and
Sterling Owen IV establishing Valentine's relationship with the FBI;
and (7) FBI records relating to an alleged sexual relationship between
Baker and Valentine's wife, Sylvie Valentine. All motions were referred
to a magistrate judge.
The magistrate held that Valentine
"met the threshold showing that the contents of the personnel file of
Special Agent Wayne Baker may contain material evidence, ... but not as
to the other individuals" listed in paragraph 6. The magistrate ordered
the FBI attorney in Knoxville who handled Brady requests to review
Baker's personnel file. The FBI attorney responded to the prosecutor
with a report, which explained that the attorney had reviewed Baker's
"main" personnel file and an "internal investigation" file regarding
Baker's relationship with Sylvie Valentine. The attorney reported that
five documents could arguably constitute Brady evidence: (1) an
admonition letter to Baker from a personnel chief; (2) an FD-302
interview report describing a phone conversation in which Valentine
complained to an FBI supervisor that Baker had sexual relations with
Valentine's wife; (3) an FD-302 describing an interview with Valentine
on December 14, 1993; (4) an FD-302 describing an interview with Sylvie
Valentine on December 15, 1993; and (5) a sworn statement signed by
Baker on December 21, 1993. The prosecutor released the FD-302s
describing Valentine's complaint and interview; on June 30, 1994, the
other three documents were offered to the district court for in camera
The district court, upon review of the
magistrate's order, held that Valentine did "not ma[k]e an adequate
showing on the record before the court that the remaining items
requested (... to the extent not already provided) are necessarily
exculpatory in nature." The district court ordered the release of the
remaining three documents regarding Baker's relationship with Sylvie
Valentine. The documents explained that the FBI found that Baker did
not know that Sylvie Valentine was the defendant's wife; the defendant
had introduced her as a "friend." The admonition letter explained that
the FBI concluded that Baker exercised poor judgment in associating
with a person to whom he was introduced by an informant.
July 7, 1994, the jury found the defendant guilty on both counts. The
district court sentenced Valentine to concurrent twelve month terms of
confinement on both counts. The district court adopted the presentence
report's recommendation to increase the defendant's offense level by 3
levels for $12,640 as the "face value of the counterfeit items." The
defendant filed this timely appeal.
A. Disclosure under Brady
defendant contends that the magistrate and the district court erred by
requiring the defendant to make an initial showing that the records
requested in paragraphs 4-6 of its motion were "material" before
ordering the government to produce those records. To repeat, paragraphs
4-6 requested: (4) unedited records of all information provided by
Valentine to the FBI; (5) unedited records showing the potential for
danger of all persons about whom Valentine provided information to the
FBI, including results of all polygraph examinations of Cary Scoggins;
and (6) results of a review of FBI personnel files of Wayne Baker,
George Lambert, William Hendon, and Sterling Owen IV so as to establish
Valentine's relationship with the government.
government responds that it has produced all material evidence to the
defendant, and to the extent that Valentine asks for more, he merely
speculates as to the materiality of remaining evidence. First, the
government explains that it turned over sixty-two documents from
investigation files, which contained all the information that was in
any way relevant to this prosecution. Second, the government points out
that any information regarding the potential danger of investigative
targets came from Valentine himself, and thus the numerous documents
turned over pursuant to the paragraph 4 request included the
information requested in paragraph 5. The government also explains that
it released a polygraph examination of Cary Scoggins, and Scoggins's
criminal record, to the defendant. Third, the government explains that
it released all five documents relevant to Baker's relationship with
Valentine's wife, and contends that the personnel files of the other
three agents are not material to this case.
determination of materiality under Brady presents a mixed question of
law and fact, and thus is reviewed de novo. United States v. Phillip,
948 F.2d 241, 250 (6th Cir. 1991), cert. denied, 112 S. Ct. 994 (1992).
United States v. Presser, 844 F.2d 1275 (6th Cir. 1988), we explained
the contours of Brady v. Maryland, 373 U.S. 83 (1963), and concluded
that Brady does not establish a general right of discovery of
nonmaterial impeachment evidence. The defendants in Presser hired
fictitious employees and used union funds to pay the "ghost" employees.
The defendants claimed that they were cooperating in an FBI
investigation, and that the FBI authorized the hiring of the fictitious
employees. Before trial, the defendants requested "all" impeachment
evidence against government agents who were scheduled to testify. 844
F.2d at 1277-78. In rejecting the blanket request, we explained that
Brady establishes a rule of due process, not a general constitutional
right of discovery. Id. at 1281 (citing United States v. Bagley, 473
U.S. 667, 675 (1985), and Weatherford v. Busey, 429 U.S. 545, 559
That rule requires the government
over evidence in its possession that is both favorable to the accused
and material to guilt or punishment.... [A] majority of this Court has
agreed, "[e]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A 'reasonable
probability' is a probability sufficient to undermine confidence in the
Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)
(citations omitted) (quoted by Presser, 844 F.2d at 1281). "[T]he
government typically is the sole judge of what evidence in its
possession is subject to disclosure. If it fails to comply adequately
with a discovery order requiring it to disclose Brady material, it act
at its own peril." Presser, 844 F.2d at 1281. Accordingly, we concluded
in Presser that Brady and its progeny did not "give the defense a
general right to pre-trial discovery of evidence impeaching defense
witnesses, where the prosecution denies that any such material is
exculpatory and material under Brady." Id. at 1283.
in United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), cert.
denied, 113 S. Ct. 1056 (1993), we affirmed the district court's denial
of the defendant's request for the personnel files of the defendant's
arresting officers. The defendant in Driscoll contended that, contrary
to the arresting officers' assertions, he was not holding a shotgun
when the officers arrested him. Id. at 1475. We confirmed that the
defendant did not have a right of access to the officers' personnel
files by simply asserting the hope that he could find evidence to "cast
doubt on their credibility." Id. at 1482. The court in Driscoll noted
that the defendant "offered no support for his contention that
personnel files might contain information important to his case." Id.
We approvingly quoted from United States v. Andrus, 775 F.2d 825, 843
(7th Cir. 1985), for the proposition that
speculation that a government file may contain Brady material is not
sufficient to require a remand for in camera inspection, much less
reversal for a new trial. A due process standard which is satisfied by
mere speculation would convert Brady into a discovery device and impose
an undue burden upon the district court.
F.2d at 1482. Finally, in Driscoll, we likened the defendant's request
to that in United States v. Pitt, 717 F.2d 1334, 1338-39 (11th Cir.
1983), cert. denied, 465 U.S. 1068 (1984), "which held that because a
defendant had failed to demonstrate that the contents of an FBI agent's
file contained material evidence, the district court did not err in
refusing to order the prosecution to turn over this file." Driscoll,
970 F.2d at 1482.
We must refer to Valentine's defenses in
determining whether specific evidence is "material." Valentine relies
on the long-established coercion defense and the novel public authority
defense. In United States v. Martin, 740 F.2d 1352, 1361 (6TH CIR.
1984), we held that the district court properly instructed the jury
that the coercion defense "may provide a legal excuse for the crime
charged .... [H]owever, the compulsion must be present and immediate
and of such a nature to induce a well-founded fear of impending death
or serious bodily injury." (Emphasis added.) In addition, the
compulsion "must be in a situation in which there was no opportunity to
avoid the danger." United States v. Campbell, 675 F.2d 815, 820-21 (6th
Cir.), cert. denied, 459 U.S. 850 (1982).
A few circuits
have explained the "public authority" defense, concluding that the
label captures three versions. United States v. Burrows, 36 F.3d 875,
881-82 (9th Cir. 1994); United States v. Baptista-Rodriguez, 17 F.3d
1354, 1368 n. 18 (11th Cir. 1994); see also United States v. Holmquist,
36 F.3d 154, 161 & nn.6-7 (1st Cir.), cert. denied, 115 S. Ct. 1797
First, the defendant may allege that he lacked
criminal intent because he honestly believed he was performing the
otherwise-criminal acts in cooperation with the government. "Innocent
intent" is not a defense per se, but a defense strategy aimed at
negating the mens rea for the crime, an essential element of the
prosecution's case. ...
A second possible defense is
"public authority." With this affirmative defense, the defendant seeks
exoneration based on ... [his] reasonabl[e] reli[ance] on the authority
of a government official to engage him in a covert activity. The
validity of this defense depends upon whether the government agent in
fact had the authority to empower the defendant to perform the acts in
A third possible defense ... is "entrapment
by estoppel." This defense applies when a government official tells a
defendant that certain conduct is legal and the defendant commits what
would otherwise be a crime in reasonable reliance on the official's
Baptista-Rodriguez, 17 F.3d at 1368 n.18
(emphasis added) (quoted by Burrows, 36 F.3d t 881-82). Although
unclear, Valentine apparently relies on the first version of the public
authority defense, the "innocent intent" strategy. Valentine seems to
assert that he had no intent to defraud D & B because he was
cooperating with the FBI in an investigation, which would be
jeopardized if Valentine had not passed the notes.
conclude that the district court did not err by refusing to order the
government to turn over all the records requested in paragraphs 4-6 of
the defendant's request. We note first that the magistrate, the
district court, and the prosecution recognized that Brady generally
obligated the government to release material information; the only
dispute arose from the defendant's purportedly "specific" requests. We
also note that Valentine was not requesting generally "impeaching"
evidence under paragraphs 4-6, that is, evidence that would discredit
the agents' propensity for telling the truth. Instead, the defendant
sought to justify the sought-after records as substantively material
evidence, that is, evidence that would establish his coercion and
public authority defenses. With this in mind, we turn to each category
First, paragraph 4 requested records of all
information provided by Valentine to the FBI. The district court did
not completely deny the defendant's request for these records. The
government produced sixty-two documents relating to the counterfeiting
investigation that the government believed to be material under Brady.
Under Presser, Valentine must ordinarily rely on the government to
decide what evidence meets the materiality requirement. The government
asserts that it turned over all material evidence, and Valentine has
not shown otherwise.
Second, paragraph 5 requested records
showing the dangerousness of persons about whom Valentine provided
information to the FBI. The government released a polygraph examination
of Cary Scoggins. Aside from this polygraph examination, and Scoggins's
criminal record, the government asserts that all records showing the
dangerousness of investigative targets came from Valentine. In light of
the government's contention that it released all material records
documenting the information given by Valentine to the FBI from
paragraph 4, the district court did not err by refusing to order the
release of records showing the dangerousness of all persons on whom
Third, the defendant requested in
paragraph 6 "[r]esults of a review of the ... personnel files of ...
Wayne Baker, George Lambert, William Hendon, and Sterling Owen IV so as
to provide any information that would establish ... Valentine's ...
relationship with the government." For two reasons, the district court
properly denied the defendant's request as to Lambert, Hendon, and
Owen. First, our decisions in Driscoll and Presser suggest that
Valentine cannot force an in camera inspection of the personnel files
absent some showing of materiality. Second, and most importantly,
Driscoll and Presser involved a request for evidence that would
discredit the officers' propensity for truth-telling. Here, Valentine
purported to ask for the personnel files in hopes of finding
substantive evidence, specifically, evidence showing that Valentine
exercised wide discretion during the investigations. Valentine fails to
explain why, outside of Baker's file, anything in the other agents'
personnel files would show anything about the range of discretion
granted to Valentine material to the counterfeiting investigation.
Indeed, Valentine does not even explain who these agents are; we can
reconstruct from trial testimony that Lambert is Baker's supervisor and
Hendon is the FBI agent who used Valentine's information in 1982. The
defendant leaves us guessing as to what role Agent Owen played.
Finally, the government explains that personnel files merely contain
records of promotions, raises, and other routine personnel matters. In
sum, the defendant's contention that the personnel files contain
substantive material evidence is unsupported.
response to Valentine's request for information regarding Baker's
relationship with Sylvie Valentine, the government released five
documents that report internal investigation interviews and the FBI's
conclusion of the matter. If the government has hidden any material
evidence -- and Valentine has not identified any -- Valentine remains
generally free to challenge the conviction when the evidence surfaces.
Accordingly, we conclude that the district court committed no error in
crafting its disclosure order.
B. Sufficiency of the Evidence
reviewing a claim of insufficient evidence, "the relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979).
We conclude that a rational
trier of fact could reject Valentine's defenses, and could find that
Valentine intended to defraud D & B. The defendant had several
opportunities to call Baker about the counterfeit notes; because
Valentine waited until after D & B employees confronted him, the
jury could infer that the defendant had never planned on calling Baker
at all. Also, the jury could rationally credit Scoggins's testimony
showing that Valentine possessed much more counterfeit money than he
turned over. Finally, Valentine even delayed turning over the money
that he eventually gave to Baker. Valentine had the initial $1740 for
about a week; he also waited until after the confrontation to turn over
the $10,200. By rationally crediting Scoggins, the jury could find that
Valentine intended to defraud D & B by passing the $700 in
As for the coercion defense, the
defendant conceded that Perry threatened him in McAllen, Texas. The
defendant had an opportunity to avoid the danger by calling Baker. In
addition, absent supporting testimony from Perry, the jury could
entirely disbelieve Valentine's coercion story. Thus, the evidence
sufficiently supported the convictions.
C. Relevant Conduct
district court's factual determination as to the "face value of the
counterfeit items," USSG Sec. 2B5.1(b)(1), used to set the specific
offense characteristic is reviewed for clear error, see United States
v. Milligan, 17 F.3d 177, 183 (6th Cir.), cert. denied, 115 S. Ct. 211
(1994). The government must prove the specific offense characteristic
by a preponderance of the evidence. United States v. Silverman, 889
F.2d 1531, 1535 (6th Cir. 1989).
Section 2B5.1 is the
sentencing guideline applied to offenses for counterfeiting United
States currency under 18 U.S.C. Sec. 472. Section 2B5.1(b)(1) directs
the sentencing court to increase the offense level for the "face value
of the counterfeit items" according to the table at Sec. 2F1.1, the
"fraud and deceit" guideline. From that table we learn that the offense
level should be increased by 3 levels if the face value of the
counterfeit items exceeds more than $10,000, but is less than or equal
to $20,000. Sec. 2F1.1(b)(1)(D). Relevant conduct must be considered in
determining the "face value of the counterfeit items," including "all
acts and omissions committed" by the defendant "that occurred during
the commission of the offense of conviction," Sec. 1B1.3(a)(1)(A).
defendant apparently concedes that the $700 passed to D & B was
relevant conduct, but attacks the district court's inclusion of an
additional $11,940 as relevant conduct. The $11,940 comprises: (1)
$1,540 in counterfeit notes turned over to Baker on August 13, 1993;
(2) $200 in shredded counterfeit notes turned over to Baker on August
13; and (3) $10,200 in counterfeit notes turned over to Baker on August
18. Valentine concedes that he possessed those notes for some time, but
argues that he possessed the notes for a legitimate reason, that is, to
assist the investigation.
We conclude that the district
court properly increased the offense level by 3 for the "face value"
specific offense characteristic. The government proved by a
preponderance of the evidence that the defendant possessed and
concealed at least $10,200 in counterfeit money with the intent to
defraud. That was the amount turned over on August 18, 1993, after
Valentine knew that D & B would alert the police that he passed
counterfeit notes. Scoggins's testimony established that Valentine
possessed the $10,200 from at least early August 1993; coupled with
Valentine's intent to defraud D & B by passing the $700, the
evidence shows that the possession and concealment of the $10,200 was
committed during the offenses of conviction. It is less clear whether
the $1740 turned over on August 13 was relevant conduct; that amount
arguably was used "to avoid detection," Sec. 1B1.3(a)(1), because
Valentine might have turned over small amounts to mislead Baker.
However, it is unnecessary to decide whether to include the $1740; the
$10,200 was surely relevant conduct, and that amount is all that is
required for the 3-level increase in Sec. 2F1.1(b)(1)(D). The district
court committed no clear error in finding that the "face value of the
counterfeit items" was more than $10,000.
We AFFIRM the defendant's convictions and sentence.
Honorable Horace W. Gilmore, Senior United States District Judge for
the Eastern District of Michigan, sitting by designation